How Alabama politics are motivating a legal showdown over gay marriage

In 2006, Alabama voters overwhelmingly passed a ban on gay marriage. Last month a federal court lifted that law, but the state’s supreme court chief justice ordered judges to ignore the ruling. The U.S. Supreme Court has refused an appeal to uphold the ban, allowing same-sex unions and setting up a legal showdown over state rights. Judy Woodruff talks to Joseph Smith of the University of Alabama.

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    To the fight over whether gay couples can marry.

    A federal court last month lifted Alabama's ban on same-sex marriage, passed overwhelmingly by voters in 2006. But Roy Moore, the state Supreme Court's chief justice, ordered state judges to ignore the federal ruling. The state appealed to the U.S. Supreme Court to put a stay on that ban, effectively halting gay marriages there.

    But, today, a divided Supreme Court decided against Alabama's appeal, allowing same-sex unions to begin. In their dissent, Justices Clarence Thomas and Antonin Scalia wrote that the court is showing — quote — "an increasingly cavalier attitude toward the states."

    For the latest on all this, I spoke a short while ago via Skype with Joseph Smith. He's a political science professor at the University of Alabama.

    Professor Joe Smith, thank you for talking with us.

    You have had an unusually busy 24 hours in the Alabama legal system. You have your state Supreme Court chief justice going one direction, the U.S. Supreme Court going in the other. How are the courts handling it?

    JOSEPH SMITH, Political Science Professor, University of Alabama: Well, right now, it's in the county offices where the action is, and I would say that they are handling it in different ways.

    I read somewhere this afternoon that 41 county offices are not giving marriage licenses to same-sex couples, and I think there's about 26 more that are giving such licenses. So it's going in two directions right now.


    How are these county offices — I gather they are officers, probate judges. How are they making these decisions?


    Well, on a case-by-case basis, meaning county by county.

    In each county, the probate judge is faced with the decision of following what Chief Justice Moore set out, laid out, or following what the federal courts have said. And I think that another factor that has to be weighe~d in is, these county probate judges are elected officials. And so they're probably also looking ahead to the next election and how they want to explain this at that election.


    So, in other words, there is politics as well as the law involved?



    Absolutely. There is politics I think all over this.

    You have got Chief Justice Moore, who, is I think — I think at this point at least know how this story is going to end, which it's going to end with same-sex marriages being recognized in Alabama, but not wanting to be the one who stops fighting.

    I think you have got Attorney General Luther Strange, who has said he is not going to give legal advice to the probate judges. He's not going to advise them on what they should do, and he is kind of deploring that the Supreme — he says the Supreme Court has decided not to delay the implementation of this and he says that's more confusion.

    It seems to me that neither one of those statewide elected officials wants to be the one who tells Alabama probate judges you have got to start issuing gay marriage licenses.


    We looked at the most recent poll we could find about public attitude towards same-sex marriage in Alabama. We saw that in 2004, 16 percent of the people were in favor, but, in 2012, eight years later, that had doubled to 32 percent.

    What do you think attitudes are like now? You're dealing with college students every day.


    Yes. College students — the undergraduates that I teach are 20, 21, 22 years old.

    And they have consistently, I would say, been very supportive of equal rights for gays and lesbians over the last 11 years that I have been at Alabama. Even while they're conservative on other issues, they have consistently, it seems to me, just thought that allowing marriage and other rights for gays and lesbians is simply fair.

    So I would say what you're seeing is a big generational change, where some voters are no longer voting. Maybe they're no longer alive. And then as younger voters either come of voting age or become a little bit more likely to vote as they get older, then their preferences are going to be more important.


    How would you describe public attitudes towards same-sex marriage in the state today?


    I would you say that the public — that public opinion doesn't yet favor same-sex marriage, but it's getting a lot closer. And it's getting a lot closer, I think, primarily because of generational change.


    Professor Joseph Smith at the University of Alabama, we thank you.


    Thank you.

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